Duncan v. Mapes

Filing 4

ORDER re 1 Petition for Writ of Habeas Corpus filed by Vincent Duncan: The petitioners application for a writ of habeas corpus 1 is dismissed,and a certificate of appealability is denied. (See order text). Signed by Chief Judge Linda R Reade on 10/26/12. (ksy)(copy w/NEF to Plf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

VINCENT DUNCAN,
Petitioner,

No. C12-0109-LRR

vs.
ORDER

TERRY MAPES,
Respondent.
____________________________

This matter is before the court following transfer from the United States District
Court for the Southern District of Iowa. Such transfer occurred on October 25, 2012. The
clerk’s office filed the action in this district on October 26, 2012. Prior to the case being
transferred or on October 23, 2012, the petitioner submitted an application for a writ of
habeas corpus (docket no. 1). The petitioner paid the required $5.00 filing fee. See 28
U.S.C. § 1914(a) (requiring $350.00 filing fee for civil actions, except that on application
for a writ of habeas corpus the filing fee is $5.00).
The petitioner did not comply with Rule 2(d) of the Rules Governing Section 2254
Cases, which requires him to substantially follow the form that is typically utilized by
those seeking relief under 28 U.S.C. § 2254. Moreover, a petitioner, before obtaining
federal habeas corpus review of his or her state confinement, must first “exhaust” his or
her federal claims in the appropriate state forum. See 28 U.S.C. § 2254(b)(1)(A). In his
application for a writ of habeas corpus, the petitioner does not explicitly address whether
he ever pursued timely direct appeals or whether he is still pursuing any type of relief in
the Iowa District Court for Tama County. Additionally, a review of Duncan v. State, Case
No. PCCV006624 (Tama Cnty. Dist. Ct. 2012), State v. Duncan, Case No. OWCR12373
(Tama Cnty. Dist. Ct. 2010), State v. Duncan, Case No. FECR012569 (Tama Cnty. Dist.

Ct. Feb. 15, 201_), and In re Detention of Duncan, Case No. CVCV006796 (Tama Cnty.
Dist. Ct. 201_), indicates that the petitioner’s criminal and civil matters are still pending
in the Iowa District Court for Tama County, the petitioner never filed a timely direct
appeal after judgment entered against him or the petitioner is still seeking appellate relief.1
Because the Iowa Supreme Court has never had an opportunity to review his claims, it is
appropriate to dismiss the petitioner’s action for failing to comply with 28 U.S.C. §
2254(b)(1)(A).
In sum, because the petitioner did not comply with the exhaustion requirements of
28 U.S.C. § 2254(b)(1)(A), it is appropriate to dismiss the petitioner’s action. To the
extent he desires a certificate of appealability under 28 U.S.C. § 2253, the court concludes
that there are no appealable issues.
IT IS THEREFORE ORDERED:
The petitioner’s application for a writ of habeas corpus (docket no. 1) is dismissed,
and a certificate of appealability is denied.
DATED this 26th day of October, 2012.

1

Iowa state court criminal and civil records may be accessed at the following
address: http://www.iowacourts.gov/Online_Court_Services/. See Stutzka v. McCarville,
420 F.3d 757, 760 n.2 (8th Cir. 2005) (addressing court’s ability to take judicial notice of
public records).
2